The haste with which the Social Health Insurance Fund Act, the Primary Health Care Act, and the Digital Health Act were enacted infringed on the national values and principles of the Constitution
Headnote: The main issue that arose was concerned with the constitutionality of the Social Health Insurance Fund Act, the Primary Health Care Act, and the Digital Health Act . The court held that the effort of the Cabinet Secretary in attempting to realize the social economic rights provided under Article 43 was commendable. The objectives and purpose of the impugned legislation were to have a progressive, transformative, and huge impact on the realization of universal healthcare for the country. However , the haste with which they were enacted infringed on the national values and principles of the Constitution . In as much as it was a noble intention, the constitutional tenets that bound Kenya could not be disregarded. Article 20 required Kenyans to promote and protect the values that underlie an open and democratic society and the spirit, purports, and objects of the Bill of Rights. Being cognizant of the importance of the impugned Laws and the input that had already gone into their enactments and recognizing the purport of the enactments as far as realization of the rights under Article 43 of the Constitution, Parliament was allowed to redeem itself and save the Laws. The breaches that tainted the Laws were redeemable within and could be corrected. The court ordered that Parliament ought to undertake sensitization, adequate, reasonable, sufficient, and inclusive public participation under the Constitution before enacting the said Acts and amending the unconstitutional provisions in terms of the judgment.

Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (Interested Parties) (Constitutional Petition E473 of 2023) [2024] KEHC 8255 (KLR) (Constitutional and Human Rights) (12 July 2024) (Judgment)
Neutral citation: [2024] KEHC 8255 (KLR)
The High Court at Nairobi
A Mabeya, RK Limo & FG Mugambi, JJ
July 12, 2024
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Constitutional Law – fundamental rights and freedoms – limitation of fundamental rights and freedoms – violation of fundamental rights and freedoms – whether provisions of the SHIA infringed on Kenyan’s right to dignity and integrity; freedom from servitude and slavery, and the freedom of conscience, religion, and thought – whether sections 26 (5) and 27 (4) which set compliance with the SHIA as a precondition for access to services at both the county and national level was a reasonable and justifiable limitation to Article 43 (1) (a) on the right to access to health – whether sections 26 (5) and 27 (4) which set compliance with the SHIA as a precondition for access to services at both the county and national level infringed on the right to access emergency medical services – Constitution of Kenya, 2010, articles 28, 30 (1), 32, 43 (1) (a)
Constitutional Law – national values and principles of governance – participation of the people – public participation – threshold of public participation – what was the bare minimum guideline for public participation to be considered sufficient – whether the process of enacting the SHIFB, DHB and PHB involved sufficient public participation – Constitution of Kenya, 2010, article 10, 118 and 132
Constitutional Law – public finance – principles of public finance – principle of openness and accountability, including public participation in public finance matters – whether the introduction of a new section 38 that provided how to deal with the balance of the funds at the end of the year failed the constitutional test of openness, accountability, and public participation in financial matters – Constitution of Kenya, 2010, article 201 (a)
Civil Practice and Procedure – institution of suits – sub judice – determination of suit where there existed another similar suit pending before court, with similar parties who were seeking similar relief – whether there existed a similar suit with the same parties, seeking similar relief in another court, that would render the ongoing suit sub judice – Civil Procedure Act, section 6
Legislation – procedures for enacting legislation – bills concerning county government – consultation of the Commissioner of Revenue Allocation when enacting legislation relating to financial matters concerning County Government – whether failure to consult the Commissioner of Revenue Allocation when enacting legislation relating to financial matters concerning County Government rendered the SHIA, DHA, and PHA unconstitutional – Constitution of Kenya, 2010, Article 205 (1)
Legislation – procedures for enacting legislation – bills concerning county government – requirement that bills concerning county government required concurrence between the speakers of the National Assembly and Senate – whether the requirement for concurrence of the speakers of the National Assembly and Senate was mandatory – whether the concurrence between the speakers of the National Assembly and the Senate could be presumed as implicit, where the Memorandum and Objects and Reasons of the impugned laws had already stated that they were Bills concerning counties – Constitution of Kenya, 2010, Article 110 (3)
Legislation – procedure for enacting legislation – publication of bills - timelines for publication of bills – discretion of parliament to reduce timelines for publication of bills – whether parliament had the discretion to reduce the timelines for publication of bills – whether parliament exercised proportionate judgment when they reduced the period of publications of the three Bills from the requisite 14 days to less than half of that time
Statutes – enactment of statutes – procedure of enactment of statutes – enactment of Acts of Parliament viz-a-viz statutory instruments – what was the distinction between Acts of Parliament and statutory instruments – whether Acts of Parliament ought to be enacted according to the process set out within the Statutory Instruments Act – Statutory Instruments Act, sections 5, 6, 8, 9 and 11.

Brief Facts:
Article 43(1)(a) of the Constitution of Kenya 2010 (the Constitution) provides that every person has the right—to the highest attainable standard of health, which includes the right to health care services, including reproductive health care. To realize the aspirations, set out in the Article, in October 2023 the Legislature enacted 3 legislations: - The Primary Health Care Act No. 13 of 2023 (“PHCA”) whose purpose was to provide a framework for the delivery of, access to and management of primary health care and for connected purposes; The Digital Health Act No. 15 of 2023 (“DHA”) whose purpose was to provide for the establishment of the Digital Health Agency; to provide a framework for the provision of digital health services; to establish a comprehensive integrated digital health information system; and for connected purposes and; The Social Health Insurance Act No. 16 of 2023 (“SHIA”), whose purpose was to establish the framework for the management of social health insurance; to provide for the establishment of the Social Health Authority; to give effect to Article 43(1)(a) of the Constitution; and for connected purposes.
The petitioner challenged the constitutionality of the 3 statutes (“the impugned statutes”). The respondents, in turn, justify the enactment of those statutes by citing the overarching need to breathe life into Article 43(1)(a) and Article 24 of the Constitution, which pertained to limitations of rights and fundamental freedom.

Issues:
  1. Whether there existed a similar suit with the same parties, seeking similar relief in another court, that would render the ongoing suit sub judice
  2. Whether the process of enacting the social health insurance fund bill, digital health bill and primary healthcare bill involved sufficient public participation
  3. Whether the concurrence between the speakers of the national assembly and the senate could be presumed as implicit, where the memorandum and objects and reasons of the impugned laws had already stated that they were bills concerning counties
  4. Whether parliament had the discretion to reduce the timelines for the publication of bills
  5. Whether parliament exercised proportionate judgment when they reduced the period of publication of the three bills from the requisite 14 days to less than half of that time
  6. Whether acts of parliament ought to be enacted according to the process set out within the statutory instruments act
  7. Whether provisions of the SHIA infringed on Kenyan’s right to dignity and integrity; freedom from servitude and slavery, and the freedom of conscience, religion, and thought
  8. Whether sections 26 (5) and 27 (4) which set compliance with the SHIA as a precondition for access to services at both the county and national level was a reasonable and justifiable limitation to Article 43 (1) (a) on the right to access to health
  9. Whether sections 26 (5) and 27 (4) which set compliance with the SHIA as a precondition for access to services at both the county and national level infringed on the right to access emergency medical services
  10. Whether failure to consult the Commissioner of Revenue Allocation when enacting legislation relating to financial matters concerning the County Government rendered the SHIA, DHA, and PHA unconstitutional
  11. Whether the introduction of a new section 38 that provided how to deal with the balance of the funds at the end of the year failed the constitutional test of openness, accountability, and public participation in financial matters
Held:
  1. Under section 6 of the Civil Procedure Act, the doctrine of sub judice required the existence of two similar suits, with one being first in time, pending before different courts, and involving the same parties seeking similar reliefs. A party invoking the doctrine of sub judice must establish that there was more than one suit over the same subject matter; one suit was instituted before the other; both suits were pending before Courts of competent jurisdiction; and the suits involved the same parties or their representatives.
  2. Dominic Masinya Oreo was the petitioner in NRB H.C Pet No. E413 of 2023 and ELRC Pet. No. E 199 of 2023, suing 3 respondents; the National Assembly, the Attorney General and the Cabinet Secretary of the Ministry of Health. In contrast, the petitioner in the instant case was Aura Joseck Enock, who had sued not only the 3 respondents but also 8 additional respondents and two interested parties. While some reliefs in the cited petitions overlapped, they were not entirely similar. The instant petition was more comprehensive and expansive in its scope. The parties involved were not identical and neither were all the issues. Although the other petitions touch on employment issues and NHIF, those were not central to the instant case. The instant petition was not sub judice.
  3. Public participation was a fundamental national value and governance principle prominently enshrined in the Constitution of Kenya and highlighted in Articles 10, 118 and 232. Article 10 (2) (a) specifically emphasizes on participation of the people as a cornerstone of Kenya's governance ethos. The provision reinforced Article 1 of the Constitution on the sovereignty of the people. Its spirit was that decisions should not be made affecting the people of Kenya without recourse to them.
  4. Article 118 of the Constitution requires Parliament to ensure public participation in the process of legislation. Parliament was required to conduct its business transparently and in the open and hold its sittings and those of the Committees in a place open and accessible to the public. The importance of that requirement was that the participation of the people in their affairs gave impetus to good governance, improved service delivery and responsiveness of government and its agencies.
  5. Public participation required the following bare minimum: -
    1. Proper sensitization on the nature of legislation to be enacted or policy to be effected;
    2. Adequate notice depending on the circumstances which must however be reasonable;
    3. Facilitation of the public that ensured that members of the public could access the information required in a convenient and practical manner, understand the same, and have a meaningful opportunity to attend, contribute and provide their views;
    4. The views of the public should be considered and where they were to be rejected or declined, the reason for such rejection and dismissal should be stated; That would obviate the public participation being a cosmetic or a public relations act;
    5. Public participation should be inclusive and should reflect a fair representation and diversity of the populace to be affected;
    6. There must be integrity and transparency of the process.
  6. There was no sensitization of the public, keeping in mind the nature, extent and magnitude of the policy that was to inform the enactment of the Bills. Sensitization ought to have been done before inviting comments from the public. 14 days for submission of memoranda was not adequate in the circumstances given that it concerned 3 Bills that were highly technical with far-reaching consequences. There was no evidence that there was any deliberate attempt to facilitate the public to give any meaningful contribution within that period.
  7. Public participation must be both qualitative and quantitative. The CS did not produce any evidence to show that ordinary members of the public submitted any comment. The notice given by the National Assembly was too short, for members of the public to access the 3 Bills online, study them, process them and make any meaningful contribution. Moreover, the alleged public participation in Mombasa only involved the Ministry of Health and the Council of Governors. No evidence was placed before the court to show that members of the public were invited or were present at the meeting.
  8. The advertisement of the Senate inviting views on the Primary Healthcare Bill left a timeline of 1 clear working day for the public to gain access to the website, interrogate and give views on the Bill. The advertisement for the Social Health Insurance Fund Bill (SHIFB) and Digital Health left one with only 2 clear working days to access the website, interrogate and provide what was supposed to be meaningful comments on the Bills.
  9. The physical public participation sitting in Lodwar, Turkana County was an already pre-determined ordinary sitting of the Senate dabbed Senate Mashinani. From the entire Hansard, there was nothing to show that the sitting was intended for public participation on the impugned Bills. No evidence was presented to show that members of the public were invited to that meeting to make representations on the 3 Bills as alleged in the affidavit. The memoranda produced as JN5 had not attested to the Senate’s contention of any public participation at the alleged meeting and was rejected.
  10. It would also seem that the Cabinet Secretary, the National Assembly and Senate all focused on very targeted and specific stakeholders. The criteria used to hand-pick the stakeholders was not explained. Moreover, there was no justification provided for the lack of proactive efforts to involve a broader cross-section of the population, thereby ensuring inclusivity in the process. That focused approach ultimately limited the expression of diverse viewpoints.
  11. In all the notices sent out to public to give their written memoranda, the print used was rather small and barely legible. The same failed to meet the threshold for clarity and transparency. A good percentage of the Kenyan populace were illiterate or had no access to internet and could not afford newspapers. The Bills were going to equally affect them and as such their input was critical. There ought to have been a deliberate effort to reach out to them.
  12. The NHIF mainly targeted employed Kenyans and those willing to join the scheme. A majority of the population never subscribed to NHIF and only did so when critically ill and admitted in hospital. The SHIF on the other hand targeted every citizen and made it mandatory for everyone to register and be paid up. There were dire sanctions under sections 26(5) and 27(4) for non-compliance.
  13. When legislation was poised to have such profound implications, it was crucial for Parliament to ensure that the public received sufficient notice and opportunities to express their views. Ultimately, those Acts were intended for the people, whose sovereignty was eloquently affirmed in the preamble of the Constitution of Kenya with the resolute declaration, "We the People of Kenya."
  14. It was no longer business as usual where the leaders of the country were presumed to know what was suitable for the people. They had to consult the people before making decisions that affect them. All the impugned Acts failed to meet the threshold and criteria set out by the Supreme Court and the bare minimum standards set for public participation. They fall short of the constitutional criteria for public participation.
  15. The objective of the Statutory Instruments Act was to provide for the making, scrutiny, publication and operation of statutory instruments. The Act applied to those instruments that were made pursuant to an Act of Parliament and not to Acts of Parliament themselves. Although Acts of Parliament and statutory instruments were both forms of legislation, they differed in their nature, creation and application. Acts of Parliament were primary legislations which set out broad legal principles and frameworks. Statutory instruments, on the other hand, took the form of secondary or delegated legislation and were laws made by individuals or bodies under powers given to them by an Act of Parliament. Those instruments allowed for more detailed provisions to be made within the framework set out by the primary legislation.
  16. Acts of Parliament were enacted pursuant to Parliament’s constitutional mandate under Articles 94 and 95 of the Constitution. Part III of the Act which provided for regulatory impact assessments was of no relevance to the 3 impugned Acts. The provisions of section 11 which required laying of statutory instruments before Parliament within seven (7) sitting days after the publication of a statutory instrument did not also apply to the 3 statutes.
  17. All power that was exercised by each of the arms of government must be exercised following the Constitution as stated in Articles 1(1) and 1(3). Article 2 was a further reminder that the Constitution bound all state organs, an interdict that was further emphasized in Article 93(2) specifically to the National Assembly and Senate to perform their functions per the Constitution. It was not in the space of the Judiciary to interfere with the role of Parliament in the exercise of its constitutional mandate. There was a need to avoid judicial overreach. However, it was within the mandate given under the Constitution for the judiciary to ensure compliance with Constitutional tenets.
  18. Courts were called to act with restraint in interfering with the processes of other organs in the exercise of their mandate. However, in exercising discretionary powers under the Standing Orders or any other rules for that matter, Parliament must remember that it was bound by the principles of governance as set out in Article 10 of the Constitution. Of particular importance was the need to ensure the participation of the people, transparency and accountability in the legislation-making process.
  19. The primary objective of the publication of Bills was to uphold constitutional imperatives by ensuring public awareness of new legislative proposals. That transparency enabled citizens to grasp the legislative agenda and the substance of a proposed Bill, thereby fostering transparency and accountability in the legislative process. Further, publication ensured that citizens had ample opportunity to thoroughly study and scrutinize any Bill well in advance, facilitating meaningful participation and input from them.
  20. The National Assembly published 2 out of the 3 Bills relating to the impugned Acts and reduced the period of publication by more than half of the period required under the Standing Orders. Though well-intentioned, the National Assembly seemed to be more concerned with the urgency to enact the Bills without taking into account the ramifications of such a drastic reduction of time and the ripple effect that it had on the overall process.
  21. Parliament had the discretion to reduce the period of publication of Bills under the Standing Orders. That discretion, however, must be exercised reasonably, judiciously and within proportionality. Parliament recognized the significance of the 3 impugned legislations, and hence the more reason to provide adequate time for public notification and thorough scrutiny of the Bills. By shortening the publication period to just 6 and 3 days, respectively, Parliament did not exercise reasonable or proportionate judgment given the nature of the Bills.
  22. Article 110(3) was couched in mandatory terms. A Bill was considered to concern counties if it affected the functions and powers of the county governments, or if it related to any matters that impacted county governments. That determination was crucial because it affected how the Bill was processed and which House had the primary responsibility. The need for prior consensus also ensured that the correct legislative process and clarity in the legislative proceedings were followed by the Houses of Parliament.
  23. The rationale behind the resolution of the Speakers was to help in determining the House that would handle the Bill. The National Assembly, however, appeared to imply that since the Memorandum and Objects and Reasons of the impugned laws had already stated that they were Bills concerning counties, they needed not to wait for the concurrence of the Speakers and that the Bills were in any case considered by both Houses. The concurrence of the Speakers of the 2 Houses with respect to Bills concerning counties was mandatory. An examination of the record clearly showed that there was blatant disregard of Article 110(3) by both Houses of Parliament in the haste to have the impugned legislation passed.
  24. Despite the Houses presuming concurrence between the Speakers as implicit, they were obligated to adhere strictly to the constitutional procedure. The enactment of the 3 impugned legislation should not have been rushed, especially at the cost of disregarding explicit provisions of Article 110(3) of the Constitution. In doing so, both the Senate and the National Assembly failed to demonstrate the requisite diligence and responsibility expected in legislative processes. By proceeding in haste, they overlooked procedural safeguards, which were fundamental to ensuring the integrity and legality of legislative actions.
  25. Articles 28, 30(1), and 32 of the Constitution provided for the right to dignity and integrity; freedom from servitude and slavery, and the freedom of conscience, religion, and thought . It could not be seen how the provisions of the law cited from the impugned legislation would infringe on the dignity of Kenyans, nor subject them to servitude and slavery. The fund introduced by SHIA was a form of tax. It was misleading to state that the unborn children will be loaned monies which loans would subject them to slavery and servitude. Those to be given loans were those in the informal sector who would apply for such loans. The indigents and children would have their contributions paid for by the government free of charge. Accordingly, it could not be seen how the said provisions of the Constitution have been infringed by the impugned legislation.
  26. It was clear from sections 26 (5) and 27 (4) of the SHIA that some rights had been limited and their enjoyment was pegged on compliance with the impugned Acts. In particular, section 26(5) set compliance with the Act as a pre-condition to accessing services both at county and national government. The petitioner did not demonstrate how the provisions infringe or were likely to infringe or violate the right to life, right to property, and political rights.
  27. The primary objective of the 3 legislation was to give effect to Article 43(1)(a) of the Constitution. There was evidence that the former legal framework (NHIF) had failed to realize those rights and in any event, it was unsustainable. The evidence on record showed that the principle of solidarity was lacking in the former legal framework under NHIF. That continued voluntary contribution was unsustainable. It was evident that unless some sort of compulsion or sanction was applied, then the realization of the rights under Article 43(1)(a) would be a mirage.
  28. The objectives of sections 26(5) and 27 of SHIA were noble. They were aimed at bringing solidarity and equity in terms of subscription and contribution to the fund and at the same time ensuring that the benefits were spread across the population and were both sustainable and a reality. Therefore, applying the principles for limitation under Article 24 on the reasonableness, the nature of the right, the extent of the limit, and the proportionality, the proposed limitation under Article 6(3) and 12(1) was reasonable, justifiable, and proportionate.
  29. However, to the extent that sections 26(5) and 27(4) of SHIA had not made exceptions to the right to emergency medical services, the same could not stand the test of constitutionality. They offended Article 43(2) of the Constitution. That was because the precondition set out in those 2 provisions infringed on the right to access to emergency services on one hand while it was the same right that the state aspired to realize with the impugned Acts.
  30. The import of the impugned provisions would mean that if a person was rushed to hospital in whatever state, including an unconscious state, he/she would only access emergency treatment upon proof of compliance. The right to life and emergency services should have and ought to have been shielded and to the extent that the provisions did not shield or exempt the right to emergency treatment set out in Article 43(2) they were unconstitutional.
  31. The Commission must be consulted even though it may or may not set out a recommendation on the proposed legislation. Indeed Article 205(1) was couched in mandatory terms. There was no evidence to show that the Commission of Revenue was consulted or invited to make any recommendations on the 3 impugned legislations. The failure by either of the Houses (the National Assembly and Senate) to consult the Commission on enacting legislation that related to financial matters concerning county governments was unconstitutional. The consultations were crucial for informed decision-making and ensuring fiscal responsibility and equity. It was therefore quite imprudent for the 2 houses to reduce the Commission into a bystander in such critical pieces of legislation.
  32. The Social Health Insurance Fund, the Primary Health Fund, and the Emergency Care Insurance Fund were all established under sections 25, 20, and 28 of the Act respectively. By dint of section 5 of the Act, it was a function of the Authority to manage the funds and to develop guidelines for the operations and implementation of the Funds established under the Act. However, the operationalization of the specific sections was yet to be effected by way of regulations. There was reason for apprehension because the existing section was introduced ignoring a key principle under Article 201(a) which emphasized on the need for openness, accountability, and public participation in financial matters.
  33. The provisions of Article 201 of the Constitution must be understood and interpreted against a histography of Kenyan society. The drafters of the Constitution were certainly intent on representing a departure from a past where public financial matters were a preserve of closed dialogue in opaque rooms only rubberstamped by Parliament. Section 38 failed the test under Article 201(a) of the Constitution and was therefore unconstitutional.
  34. The effort of the Cabinet Secretary in attempting to realize the social economic rights provided under Article 43 was commendable. The research and industry shown in coming up with the pieces of legislation were also commendable. The objectives and purpose of the impugned legislation were to have a progressive, transformative, and huge impact on the realization of universal healthcare for the country. However, the haste with which they were enacted infringed on the national values and principles of the Constitution. In as much as it was a noble intention, the constitutional tenets that bound Kenya could not be disregarded. Article 20 required Kenyans to promote and protect the values that underlie an open and democratic society and the spirit, purports, and objects of the Bill of Rights.
  35. Being cognizant of the importance of the impugned Laws and the input that had already gone into their enactments and recognizing the purport of the enactments as far as realization of the rights under Article 43 of the Constitution, Parliament was allowed to redeem itself and save the Laws. The breaches that tainted the Laws were redeemable within and could be corrected.
Petition allowed.
Orders
  1. Parliament ought to undertake sensitization, adequate, reasonable, sufficient, and inclusive public participation under the Constitution before enacting the said Acts and amending the unconstitutional provisions in terms of the judgment.
  2. Compliance with (i) above be undertaken within 120 days of the date of the judgment.
  3. Within that period, the Acts shall remain suspended.
  4. In default of (i) and (ii) above, on October 11, 2024, the following relief shall take effect forthwith: -
    1. A declaration was thereby issued that the entire Social Health Insurance Fund Act, 2023; the entire Digital Health Act, 2023 and the entire Primary Health Act, 2023 were all unconstitutional for the reasons set out in the Judgment and therefore invalid, null and void.
  5. Each party to bear their own costs.


Kenya Law
Case Updates Issue 03/24-25
Case Summaries
CONSTITUTIONAL LAW Members of the media fraternity had the obligation, to respect, uphold and defend the Constitution, by refraining from perpetuating an event that had its core objective of subverting and undermining the democratic will of the people.

Headnote: The main issue before the court was whether the decision to shut down the live television transmission by three broadcast stations, of an event considered to result in the breach of national security, passed the constitutional muster of being a permissible limitation in law. The interested parties, as responsible and law-abiding members of the media fraternity had the obligation, under Article 3(1) and (2) of the Constitution and the law to respect, uphold and defend the Constitution, by refraining from perpetuating an event that had its core objective of not only subverting and undermining the democratic will of the people, but also had the potential of causing widespread civil unrest at the very least. The Interested Parties were out to further an activity which was specifically restrained by the Constitution. Such actions could not be deemed as normal broadcasting services on the part of the Interested Parties.

Law Society of Kenya v Director General, Communication Authority of Kenya & 3 others; Royal Media Services Limited & 2 others (Interested Parties) (Constitutional Petition 89 of 2018) [2024] KEHC 7346 (KLR) (Constitutional and Human Rights) (20 June 2024) (Judgment)
Neutral citation: [2024] KEHC 7346 (KLR)

High Court at Nairobi
AC Mrima, J

Reported by Robai Nasike Sivikhe

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Constitutional Law – fundamental rights and freedoms – freedom of the media – freedom of expression – limitations of the freedom of media and freedom of expression – where broadcast stations were issued a directive to abstain from covering an event that would allegedly lead to a serious breach of security - whether the decision to shut down the live television transmission by three broadcast stations, of an event considered to result in breach of national security, passed the constitutional muster of being a permissible limitation in law - whether the live coverage of an event purporting to install a people’s president, by broadcasting stations, was constitutional and lawful.

Brief Facts

On January 30, 2018, Raila Odinga, the then Leader of the Political outfit by the name National Super Alliance (NASA) convened a rally at Uhuru Gardens in Nairobi for the purpose of ‘swearing himself in’ as the People’s President. The interested parties had earlier on been briefed by the 1st respondent of the possible breakdown of peace and tranquillity in the country as a result of any live broadcasting of the event. The entities were, therefore, advised and directed not to undertake such broadcasts for the larger good of the country. On January 30, 2018, the Director General of the Communication Authority of Kenya, the 1st respondent, shut down the live television transmission for three broadcasting stations: Royal Media Services Limited, Nation Media Limited and The Standard Group Limited (1st, 2nd and 3rd Interested Parties). As a result, the stations’ ability to broadcast their respective information and programmes was impeded.

The petitioner contended that on January 31, 2018, a day after the shutdown, the Cabinet Secretary, Interior and National Government (3rd respondent), made a Press statement justifying the shutdown by stating among other reasons that the decision was to facilitate the full investigation into serious breach of security occasioned by the media fraternity that participated in covering the events of January 30, 2018, where Raila Odinga held a rally at Uhuru Gardens in Nairobi. Through the Petition dated March 8, 2018, the petitioner claimed that the 1st, 2nd and 3rd respondents' actions violated the values and principles in the Constitution and constituted a serious threat to the rule of law, order and administration of justice. The petitioner asserted that the shutdown violated Article 33(1) of the Constitution which entitled every person including the members of the public, the freedom to seek, receive and impart information.

Issue:

  1. Whether the decision to shut down the live television transmission by three broadcast stations, of an event considered to result in breach of national security, passed the constitutional muster of being a permissible limitation in law.
  2. Whether the live coverage of an event purporting to install a people’s president, by broadcasting stations, was constitutional and lawful.

Held:

  1. The first port of call in the legal space within which telecommunication and/or broadcasting stations ought to operate was the Constitution, article 34 on the freedom of the media and article 33 on freedom of expression. The statutory framework consists of the Kenya Information and Communications Act, Cap. 411A, Laws of Kenya (the Act) and its subsidiary regulations such as the Kenya Information and Communications (Broadcasting) Regulations (the Regulations).
  2. The Kenya Information and Communications Act, Cap. 411A, Laws of Kenya (the Act) established the Kenya Communications Authority of Kenya, (the CAK), under section 5. The decision to shut down telecommunication and/or broadcasting stations was tantamount to suspension of the license to transmit signal of live broadcast. Section 5B (1) of the Act required that every action taken by the Authority conform with the dictates of Article 34 of the Constitution. Section 5B (3) and (4) of the Act limited the freedom accorded to the media. The parameters for broadcasting services in Kenya were provided for under Part IVA of the KICA. The functions of CAK in relation to broadcasting services were provided for in Section 46 of the Act.
  3. There were several subsidiary legislations in place which focused on broadcasting services. For instance, the Kenya Information and Communications (Broadcasting) Regulations (the Regulations) imposed general requirements on licensees for broadcasting services. Regulation 6 called upon the Commission to ensure that broadcasting services reflect the national identity, needs and aspirations of Kenyans. Regulation 19 provided for the content of the broadcasts.
  4. The statutory framework on telecommunication and/or broadcasting stations affirmed the position that the freedom of the media could be appropriately limited as long as it was within the constitutional imperatives envisaged in article 24 of the Constitution, the law and the Regulations thereunder.
  5. The Constitution of Kenya 2010 ushered in a new era of the country’s governance. It was a departure from the retired Constitution where power was concentrated on the Presidency and the Executive generally. The Constitution of Kenya, 2010, instead gave sovereign power to the people. Under article 3(2), any attempt to establish a government otherwise than in compliance with the Constitution was unlawful.
  6. The manner in which the democratic government in Kenya was formed was also well spelt out in the Constitution. Such a government was founded on a President who was democratically elected by 50% + 1 of the registered voters in Kenya under the universal suffrage system. That system was managed by the Independent Electoral and Boundaries Commission established under Article 88 of the Constitution. Once elected and eventually sworn-in as the President, the winner, assumed that position and exercised delegated executive power under Chapter Nine of the Constitution. The President would become the Head of State and Government, exercise the executive authority of the Republic [with the assistance of the Deputy President and Cabinet Secretaries], was the Commander-in-Chief of the Kenya Defence Forces, was the Chairperson of the National Security Council and, above all, was a symbol of national unity.
  7. The Constitution did not provide for any other form of a President of the Republic. Therefore, the phenomenon of a ‘Peoples’ President’, propounded by Raila Odinga and his supporters, was not only foreign to the land, but also in direct contravention of article 3(2) of the Constitution. Further, Article 2(3) of the Constitution affirmed the supremacy of the Constitution by providing that the validity or legality of the Constitution could not be challenged before any Court or State organ. The events of January 30, 2018 as perpetrated by Raila Odinga ran afoul the Constitution. The installation of the ‘Peoples’ President’ by way of swearing-in was, hence, an attempt to establish a government otherwise than in compliance with the Constitution.
  8. The petitioner, as well as, the interested parties did not demonstrate, by way of evidence, that they acted within the Constitution and the law. There was no rebuttal to the respondents’ position that the respondents had acted in defence of the Constitution under article 3 of the Constitution and that the freedom of the media was properly limited within article 24 confines and the law. There was also no rebuttal to the allegation that the 1st respondent informed all the media houses in Kenya, well before the date, of the possible security risks in covering the events of January 30, 2018, live. The request was made in the larger interests of the public and to maintain security, law and order. In addition, the instant petition did not challenge the direction issued by the 1st respondent.
  9. The interested parties, as responsible and law-abiding members of the media fraternity had the obligation, under Article 3(1) and (2) of the Constitution and the law to respect, uphold and defend the Constitution, by refraining from perpetuating an event that had its core objective of not only subverting and undermining the democratic will of the people, but also had the potential of causing widespread civil unrest at the very least.
  10. The Interested Parties were out to further an activity which was specifically restrained by the Constitution. Such actions could not be deemed as normal broadcasting services on the part of the Interested Parties. The 1st respondent was, hence, within its constitutional and statutory mandate to ensure that the unconstitutional actions by the interested parties were not permitted to flourish. Having chosen not to obey the Constitution and the law, the interested parties, willingly and intentionally, exposed themselves to all and any legal perils which included the impugned action by the 1st respondent.
  11. The petitioner did not demonstrate that the respondents’ impugned action contravened the Constitution and the law. Conversely, the respondents demonstrated that they acted within the limitations of the freedom of the media in line with article 24 of the Constitution and the law. Hence, the petition was unsuccessful on two fronts. First, that the interested parties were out to propagate an unconstitutional venture, and, second, that no evidence or sufficient evidence was tendered in proof of the averments in the petition.
  12. The impugned action was constitutional and lawful. The respondents were coordinated Government ministries that hard to work collegially, share information and collaborate to achieve the greater and lawful good anticipated by the Constitution. The respondents’ collective decision, was reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom to the extent that it forestalled an unconstitutionality and an illegality.

Petition dismissed. Parties to bear their own costs.

CONSTITUTIONAL LAW

The Supreme Court’s ruling on jurisdiction did not foreclose future interrogation of whether the Court’s jurisdiction was validly invoked

Headnote:The Supreme Court issued a ruling restricting its jurisdiction to issues that it had couched, however, the litigants submitted on the subject matter as if it was an appeal against the substantive judgment of the Court of Appeal. That necessitated an interrogation on the jurisdiction of the Supreme Court. The Court held that the Supreme Court’s ruling on jurisdiction did not foreclose future interrogation of whether, the Court’s jurisdiction was validly invoked, either by the court suo moto or by a party to the proceedings. In the Supreme Court’s ruling, the appellant was given the benefit of the doubt and thought it was necessary to allow the appellant to ventilate its appeal under the strict confines of Article 163(4)(a) of the Constitution. With the benefit of the petition of appeal, submissions and the arguments by counsel for the parties, it emerged that the appeal transmuted from that against the ruling by the Court of Appeal on the appellant’s application for review of the judgment by the same court to an appeal against the judgment of the Court of Appeal

Ashmi Investment Limited v Riakina Limited & another (Petition E014 of 2023) [2024] KESC 30 (KLR) (28 June 2024) (Judgment)
Neutral citation: [2024] KESC 30 (KLR)
Supreme Court of Kenya
MK Koome, CJ & P, PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala & I Lenaola, SCJJ
Reported by Robai Nasike Sivikhe /strong>
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Constitutional Law – jurisdiction – jurisdiction of the Supreme Court – where the Supreme Court further interrogated its jurisdiction, despite having a prior ruling on its jurisdiction – parameters of review of a judgment by the court of appeal – where the litigants submitted on issues of appeal as if the appeal was against a substantive judgment, as opposed to restricting themselves to the issues framed by the Supreme Court – whether the Supreme Court’s ruling on jurisdiction foreclosed future interrogation on whether the Court’s jurisdiction was validly invoked, either by the court suo moto or by a party to the proceedings – whether the Supreme Court had jurisdiction to determine an appeal against the substantive judgment of the court appeal, as opposed to the issues raised by the Supreme Court – Constitution of Kenya, 2010, article 163 (4) (a)

Brief facts:
The appellant, Ashmi Investment Limited, vide its Petition of Appeal challenged the ruling of the Court of Appeal. The Court of Appeal had declined to review and set aside its judgment and orders made in Civil Appeal No. 384 of 2019, affirming the judgment of the Environment and Land Court (ELC) in Civil Suit ELC No. 646 of 2014. The net effect of the impugned decision was that the appellant’s survey deed plan and resultant title to the suit properties - LR Nos. 29957 and 29955 were cancelled. The Court of Appeal also agreed with trial court (the Environment and Land Court) that the property was not available for allotment to the appellant and that the titles processed in favour of the appellant could not stand, the same having been issued during the pendency of the suit.
The appeal invoked the Supreme Court’s jurisdiction under Article 163 (4) (a) of the Constitution, Section 15 (2) of the Supreme Court Act No. 7 of 2011, and Rules 3 (5), 31 & 32 of the Supreme Court Rules 2020. The 1st respondent raised a preliminary objection, inter alia, challenging the Court’s jurisdiction to hear the appeal as of right under the provisions of section 163(4)(a) of the Constitution. In the Ruling dated August 4, 2023, the Court addressing itself on the merits of the preliminary objection, partly allowed the objection and restricted the appeal to the following issues: whether the applicant was a bona fide owner of the suit properties within the provisions of Article 40 of the Constitution; and whether the Court of Appeal misapplied the doctrine of lis pendens thereby denying the applicant a right to property.

Issues:

  1. Whether the Supreme Court’s ruling on jurisdiction foreclosed future interrogation on whether the Court’s jurisdiction was validly invoked, either by the court suo moto or by a party to the proceedings
  2. Whether the Supreme Court had jurisdiction to determine an appeal against the substantive judgment of the court appeal, as opposed to the issues raised by the Supreme Court

Held:

  1. When an appeal was instituted before the Supreme Court, under Article 163(4)(a) of the Constitution, as of right, in any case involving the interpretation or application of the Constitution, the court had to satisfy itself of the jurisdiction to hear and determine the matter, whether an objection had been raised or not. The Supreme Court, in its ruling, framed the following issues: whether the applicant was a bona fide owner of the suit properties within the provisions of Article 40 of the Constitution; and whether the Court of Appeal misapplied the doctrine of lis pendens and thereby denied the applicant a right to property. Since the focus of the Supreme Court’s ruling was the preservation of the substratum for purposes of the appeal, it remained open for the court, with the benefit of the arguments in the substantive appeal, to remain satisfied with the jurisdiction.
  2. The Supreme Court’s ruling on jurisdiction did not foreclose future interrogation of whether, the Court’s jurisdiction was validly invoked, either by the court suo moto or by a party to the proceedings. In the Supreme Court’s ruling, the appellant was given the benefit of the doubt and thought it was necessary to allow the appellant to ventilate its appeal under the strict confines of Article 163(4)(a) of the Constitution. With the benefit of the petition of appeal, submissions and the arguments by counsel for the parties, it emerged that the appeal transmuted from that against the ruling by the Court of Appeal on the appellant’s application for review of the judgment by the same court to an appeal against the judgment of the Court of Appeal.
  3. Following the decision of the Court of Appeal, the applicants were faced with two options – to, either file for review of the decision to the same Court or pursue an appeal before the Supreme Court within either of the applicable jurisdictional contours. When a litigant had more than one option to pursue, they had to settle on one of them. The decision on which course to pursue was taken in advance and once it was taken, the other option was no longer available or placed in abeyance to be reverted to at a later stage in the event the initial option did not succeed. That meant that when choosing, the litigant was expected to choose the best available option since they may not have any further recourse.
  4. When litigants preferred to pursue a review of the decision, as they were entitled to, that was the best option in their assessment even if it turned out to be unsuccessful. Allowing them to take the second option at a later stage as if they never exercised the first option in the first place, would not only contribute to protracting litigation but would also defeat the whole essence of the finality of the litigation process. That would mean that precious judicial time and resources would have been unnecessarily expended in not settling the dispute but rather satisfying the litigants’ options to cherry-pick and engage in trial and error at the altar of the judicial process without the attendant consequences.
  5. The Supreme Court was not seized of the requisite jurisdiction as the parameters of review of a judgment by the Court of Appeal were well settled. The appellant failed to construe a constitutional argument arising out of such parameters to necessitate the appeal particularly in so far as it related to the issues framed in the Supreme Court ruling. The appellant went on to submit on the issues as if the appeal was against the substantive judgment, an outright affront to scarce judicial time, resources, process and procedure. Consequently, the focus of the appeal as presented was incongruent with the expectation accruing from the Notice of Appeal dated April 28, 2023. The Supreme Court did not have jurisdiction to entertain the same and it should be struck out.
  6. Costs follow the event and costs should not be used to punish the losing party but to compensate the successful party for the trouble taken in prosecuting or defending a suit. Taking into consideration all circumstances of the hearings, in all the three superior courts, and the non-participation of the respondents, there shall be no order as to costs.

Petition struck out. The court directed that the sum of Kshs.6,000/= deposited as security for costs in the appeal herein be refunded to the appellant.